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2009(3) Crimes 518 (A..P.)
ANDHRA PRADESH HIGH COURT
R. Kantha Rao, J.
The Food Inspector, Zone-II, MCH, Secunderabad –Appellant
versus
B. Rama Rao and D. Mahesh –Respondents
Criminal Appeal No. 877 of 2002
Decided on 5.9.2008
Counsel for the Parties:
For the Appellant: Public Prosecutor.
For the Respondent:Sri C. Praveen Kumar, Advocate.
IMPORTANT POINT
Where sample was taken with improve or contained vessel, report of public analyst cannot be pressed into service to convict the accused for offence under Section 7/16 of the PFA Act.
Headnote:Prevention of Food Adulteration Act, 1954—Section 16(1)(a)(i), 7(i), 2(io)(m) —Prevention of Food Adulteration Rules 1955, Rules 14, 16—Judgment of acquittal—Sustainability—Sample of groundnut oil taken from possession of Respondent No. 1—Respondent No 1 attending to chop and transacting business—Mere fact that licence of shop was in name of mother would not absolve him from criminal liability—Sample not taken once but twice—No evidence to show that sample was taken in clean dry bottles and was properly sealed—Presence of PW3 and 4 at the time of inspection doubtful—No sample lifted from respondent No. 2 when respondent No. 1 disclosed purchase from him who was manufacturer and wholesesller of the product—Mandatory provisions of Rules 14 and 16 not complied with—Different version by PWs 1, 3 and 4 with regard to sampling and sealing process—Judgment of acquittal confirmed. (Paras 12, 14 to 19)
JUDGMENT
R. Kantha Rao, J.—This appeal is filed by the State against the judgment of acquittal, dated 16.6.1997 passed by the VII Metropolitan Magistrate, Hyderabad in C.C. No. 06 of 1994.
2. The first respondent was tried for the offences punishable under Sections 16(1)(a)(i), 7(i) and 2(ia)(m) of Prevention of Food Adulteration Act (for short ‘the Act’) and was acquitted by the learned Magistrate. Originally the Food Inspector filed complaint against the respondents 1 and 2. As the second respondent was absconding, case against him was separated and the first respondent was tried for the offences alleged.
3. According to the prosecution on 28.5.1993 at about 10.45 a.m. PW1 (U. Narsaiah) the Food Inspector along with his at tender PW4 (M. Suryanarayana) inspected the shop of the first respondent and found him transacting business. Having found groundnut oil in an open stainless steel container which is meant for human consumption and kept for sale, PW1 called one person by name Pochaiah (PW3) an independent witness to be present at the time of his inspection and served Form No. VI notice on the first respondent indicating his intention to lift the sample of groundnut oil kept for sale. He purchased 450 grams of groundnut oil and obtained receipt from the first respondent. He divided the commodity into three equal parts, placed it in three clean dry empty bottles. It is the version of PW1 that he conducted sampling and sealing process by strictly observing all the formalities prescribed under the Act and Rules. One part of the sample was sent to the Public Analyst along with memorandum in Form No. VII in a sealed package. Another copy of Form No. VII with the specimen impression of the Food Inspector was separately sent in a sealed cover. The remaining two parts of the sample were deposited with the local health authority for safe custody.
4. After analyzing the sample, the Public Analyst gave a report stating that the sample does not conform to ‘Butyro Refractometer Reading, Iodine Value and Belliers Test’, contained castor oil and is therefore adulterated.
5. At the time of lifting of sample itself, A1 produced before PW1 the Food Inspector, a Xerox copy of the bill issued by A2 under which A1 purchased the groundnut oil. However, PW1 did not lift any sample from the business premises of the 2nd respondent who is a manufacturer wholesaler on the ground that the stock was not available. But no tangible proof is placed by the Food Inspector in proof of the fact that he actually visited the business premises of 2nd respondent and tried to secure the sample of groundnut oil corresponding to the bill furnished to him by the first respondent. Subsequently PW1 submitted a report in regard to the matter in question to the Director, IPM and after obtaining written consent to launch prosecution against A1 and A2, filed complaint before the learned Magistrate.
6. After filing of the complaint, notice under Section 13(2) along with the report of the Public Analyst was sent to respondents 1 and 2. The case against 2nd respondent was split up as he was absconding and a separate C.C. No. 28 of 1996 was assigned to the case of 2nd respondent on the ground that non-bailable warrants were pending since long time.
7. Before the learned Magistrate in order to prove its case, the prosecution examined PWs1 to 4 and marked Exs. P1 to P28. No oral evidence was let in on behalf of the first respondent but Exs. D1 to D7 were marked on his behalf.
8. The learned Magistrate upon considering the oral and documentary evidence on record, acquitted the first respondent mainly on two grounds, namely, (1) PW 1 the Food Inspector failed to observe the mandatory provisions contained in Rules 14 and16 of the Prevention of Food Adulteration Rules (for short ‘the Rules’). (2) That despite the fact the first respondent handed over a Xerox copy of the bill under which he purchased groundnut oil from second respondent, PW1 did not lift any sample of corresponding gr
